Guest Blogger

Got a drone over the holidays? Be careful before flying it for a business purpose

Darrell Clay is a partner with Cleveland-based Walter | Haverfield, where his practice focuses on aviation law, complex civil litigation and white collar criminal defense. He is an instrument-rated private pilot and airplane owner.

The holidays were good to you. So good, in fact, that you found yourself the lucky recipient of your own unmanned aircraft system, the official term for an aerial drone.

Maybe it was a quadcopter, an octocopter or even a fixed-wing unit. They seem to have become so commonplace that for a while, you could even purchase one at Costco. You can’t wait for the weather to warm up before you use it, and you’re dreaming of ways to enhance your business operations with stunning videos that you shot from the skies. Despite their relative ubiquity, the ground rules for operating a drone remain somewhat murky, especially when the operation is for a commercial purpose, not just as a hobby or for recreation. Congress, in section 333 of the FAA Modernization and Reform Act of 2012, directed the U.S. Department of Transportation to determine if unmanned aerial drones can operate safely in the national airspace system and, if so, to issue comprehensive regulations for their safe operation. An initial draft of those regulations was expected by the end of 2014, but that process stalled during review by the White House’s Office of Management and Budget. Meanwhile, in March 2014, a federal administrative law judge overturned a $10,000 fine the FAA levied on a commercial drone pilot who operated without a permit, concluding that a drone was a “model aircraft” not subject to any regulation by the FAA. That decision was overturned in November on appeal to the National Transportation Safety Board, which reasoned that a drone qualified as an “aircraft” for all regulatory purposes. The 60-day period for appealing the NTSB’s decision is rapidly closing, and it remains to be seen whether the offending pilot will pursue a further challenge to the fine. As a result, under existing FAA policy, commercial drone operations are prohibited unless specifically authorized through a process known as a Certificate of Exemption. These certificates are granted on a case-by-case basis. As of Tuesday, Jan. 6, more than 210 applications for an exemption had been submitted to the FAA, but it had granted only 14 of those. This includes six to video production companies sponsored by the Motion Picture Association of America; several for aerial surveying (including one in Ohio), construction site monitoring and crop scouting; and one for inspecting flare stacks on offshore oil platforms in the Gulf of Mexico. For all Certificates of Exemption granted to date, the FAA has required that that drone pilot hold at least a private pilot’s license and accompanying medical certificate, that there be an observer in addition to the pilot, and that the drone remain below certain maximum altitudes and within visual line of sight at all times. Moreover, the FAA has imposed specific prior-experience requirements for persons serving as the pilot-in-command of a drone conducting commercial operations. A variety of other additional conditions have also attached depending on the size, weight and speed of the drone, among other factors. An application to the FAA for a Certificate of Exemption must address a variety of issues and takes at least 120 days to be reviewed. So take heed before you fly your new drone for a business purpose. An otherwise legal flight to record video for hobby or recreation purposes becomes something quite different if that same video will be sold or used in connection with your business. For further information, the FAA and others have partnered to produce a short video, “Know Before You Fly,” that covers the basics of safe and prudent recreational drone operation.